After a less than successful southern swing through the Gulf States, today Ken Feinberg’s GCCF disaster tour will be on Capitol Hill to answer questions from the Senate Homeland Security Committee’s Ad Hoc Subcommittee on Disaster Recovery, chaired by Senator Mary Landrieu. The questions are expected to be aggressive, tough and the demands will be high. Rep Steve Scalise from Jefferson Parish set a preemptive tone this week by issuing a letter calling for the GCCF to change their ways:

“The people of Louisiana deserve transparency throughout the claims process and Mr. Feinberg has refused to adapt the process to better suit the needs of the people affected by the BP disaster,” Scalise said. “The GCCF’s opaque nature detracts from its credibility and adds to claimants’ frustration as they try to understand why their claim was denied or underpaid, and Mr. Feinberg has acknowledged this problem in the past but has failed to modify the GCCF’s approach. As a result of this, many claimants have fallen through the cracks, and can’t get answers to basic questions about their claims. Mr. Feinberg must be held accountable to the victims of this disaster, and I eagerly await his response to my request.”

Mr. Feinberg is expected to answer this today by saying he is…

1. Doing the best he can.

2. Promising to be more transparent…again…

3. Denying accusations he is not neutral…again…

Rep. Scalise, in his letter, questioned why Feinberg would consider pulling 150 local people out of the claims offices at a time when few claimants can get an answer to their questions, especially considering Feinberg’s previous commitments to keep local people in those offices, as it would seem more people are needed to help the GCCF complete their task, not less. Beyond this, Scalise would like to know details on who is being paid and why and maybe even more importantly, who isn’t and why not. He is also seeking information regarding the formula for how payments are calculated, the total number of people employed by the GCCF, and the number of unprocessed six month emergency claims and justifications for why these claims remain unpaid.

Mr. Feinberg is expected to answer this today by saying he is:

1. Doing the best he can.

2. Promising to be more transparent…again…again…

3. Denying any accusation he is not neutral, because he has a letter stating so, written by a friend of his who was paid $950 dollars an hour to do so, paid with BP’s money.

Meanwhile:

The Attorneys General of the Gulf Coast States continue to weigh in on all matters GCCF with Mississippi AG, Jim Hood requesting that US District Court Judge Carl Barbier appoint someone who would have oversight over the operations of Ken Feinberg and the GCCF, and determine whether Feinberg’s no-sue clause is overly broad. Hood says Feinberg continues to deny the state’s attorneys access to the GCCF database that would provide details on the claims payments. Feinberg, despite saying that when then claims process is over this same information will be given to British Petroleum, has told the attorneys he is unwilling to compromise the privacy of claimants.

Meanwhile:

Plaintiff’s attorneys have submitted a petition to US District Court Judge Barbier stating their belief that all claims Feinberg and the GCCF are making about their ability to act independently of BP is both “inaccurate and misleading.”

Highlights of the petition include:

“A recognized standard of accuracy is whether the statements are materially misleading considered as a whole, which is the modern definition of fraud,” UC law professor, Geoffrey Hazard chided in his 10-page statement.

He contends that the claims on behalf of the facility’s impartiality “portray GCCF procedure as more just and fair than that in the ordinary tort system.” Hazard said such notions are belied by conditions on claims payouts, such as requiring claimants to sign away their legal rights to sue BP or other liable parties at a later date, regardless of future harm to their health or financial well-being arising from heretofore unknown consequences of the spill.

“The GCCF procedure requires claimants, in order to receive final payment, to release BP from types of damages … that are not being considered by the GCCF,” Hazard wrote. Additionally, Hazard insists that there’s no way the Feinberg-run fund can maintain objectivity when BP is paying all of its expenses — including the $800,000-per-month fee charged by Feinberg’s law firm. “GCCF is not entirely independent because its operating expenses, which are substantial, come from BP,” Hazard wrote. “The GCCF is not a mediator, according to ordinary understanding of that term, because it was established unilaterally by BP and not with agreement of opposing claimants.”

Mr. Feinberg is expected to answer this by saying he is:

1. Doing the best he can.

2. Okay, really, I promise I will be more transparent…ASAP.

3. Seriously, read the letter my friend wrote, it cost BP well over a thousand dollars…

Meanwhile:

An expert tasked by the Plaintiff’s Steering Committee to review aspects of the operation of the GCCF has also found many problems with the claims made by Feinberg about his ability to act independently. Edward F. Sherman, Professor of Law at Tulane University addressed the operation and role of the claims facility in his five page declaration to Judge Barbier’s court, and through this declaration he reports he is concerned by the following conclusions:

– Feinberg and BP, while maintaining that Feinberg is independent, the arbitrator in fact consulted with BP about the standards for payment of claims, and the fee arrangement, paid by BP was not publicized and most claimants would not have known about it and should have, in order to take this into account before accepting a payment offer from the GCCF.

– That Feinberg, while maintaining his “independence” indicated to claimants they would be better off settling their claims with the GCCF rather than litigating.

– Claimants should be made aware who is paying the bills of the private attorneys hired by Feinberg in helping claimants determine their best options.

– Finally, “The kind of release required by the GCCF in order for a claimant to receive a final payment also raises question as to how independent the GCCF is…”

Professor Sherman gives his opinion that the court should limit or clarify the GCCF’s communications with claimants and in their public announcements, so the claimants can be said to have made informed choices.

But of course, BP has a different opinion on the matters raised by Professor Sherman: Attorneys for BP have filed a motion in opposition to a recent plaintiff filing asking that U.S. District Judge Carl Barbier supervise communications between defendants and the Gulf Coast Claims Facility (GCCF) in the Gulf oil spill litigation. BP attorneys…point to a letter by New York University legal ethics professor Stephen Gillers to Feinberg as ethical counsel on the matter. Gillers wrote that the plaintiff’s “suggestion that you are not independent because you are BP’s lawyer is wrong. You are not BP’s lawyer.”

Feinberg is expected to add:

1. See, I told you I had a letter saying I was “independent,” written by a friend, paid for by British Petroleum and now defended as accurate and legitimate by British Petroleum’s own lawyers.

2. What do you mean, conflict of interest?

3. I’m neutral damnit, and didn’t I say I was going to be more transparent, really, I promise…again…and again…and again…sometime, really, in the near future, the transparency is so close I can taste it…

Meanwhile:

Gulf Coast residents have had several tastes of the claims facility’s operations and promises, and they taste like shit.

So what happens when Ken Feinberg goes to congress and is grilled by congress type people? Well, as indicated on Tuesday evening, the President is MIA on this one, and the president is one of the few people who can apply pressure on this situation. Attorney’s, local, state and federal politicians, the Justice Department have been making demands for months with little to show for it but more mea culpas and promises from Feinberg and the GCCF, all for naught. So, I’d love to say that this little congressional session will make Feinberg think, will make him take a step back, will result in him appearing more neutral, but my hopes are slim at best…

Though not a fan of litigation, it would seem that it is in claimants best interest to hire lawyers, after all, Feinberg is one, and has many at his disposal, and so does British Petroleum and everyone else at fault in this whole mess. Much as Feinberg strove to keep this all out of the courts, it is his very tactics in the claims process that is driving more and more people there, seeing it as their only means of making things right.